United States v. Edel Jorge Maso

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 26, 2007
• Docket: 07-10858
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT OCT 26, 2007 No. 07-10858 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________

D. C. Docket No. 06-00072-CR-J-25-HTS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDEL JORGE MASO,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida _________________________

(October 26, 2007)

Before WILSON, PRYOR and FAY, Circuit Judges.

PER CURIAM: Edel Jorge Maso appeals his conviction for possession with intent to

distribute and aiding and abetting the distribution of cocaine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1) and 18 U.S.C. § 2. Specifically, Maso argues that

the district court (1) violated his Sixth Amendment right to a public trial by

holding an in camera hearing to determine if a principal government witness could

testify using a pseudonym and ultimately allowing the witness to do so; and

(2) violated his Sixth Amendment right to confront witnesses by allowing the

principal government witness to testify using a pseudonym. For the reasons

discussed below, we affirm.

Before Maso’s trial, the government submitted a motion to allow the

confidential witness (“CW”) to testify using a pseudonym. The government

explained that the CW was a professional undercover informant for the Drug

Enforcement Agency (“DEA”) and had been threatened in the past in connection

with his work as a DEA informant. The government indicated that it had informed

Maso of the CW’s real name. The government argued that public disclosure,

however, of the CW’s real name would endanger the CW and his family and would

compromise ongoing DEA investigations. Maso objected to the government’s

motion, suggesting that the use of a pseudonym would violate his right to

confrontation and the public’s interest in an open trial. The district court indicated

2 that it would hold an in camera hearing to determine if revealing the CW’s real

name in open court posed an unreasonable risk. Maso objected to holding the

hearing in camera. The district court overruled this objection and excluded

everyone from the courtroom save those involved in the trial.

At the in camera hearing, the CW testified as follows. He had worked as a

CW for the DEA for 6 years and in 30 investigations, some of which led to

prosecutions and some of which were ongoing. Approximately one month before

the hearing, someone approached the CW’s father and warned that the CW should

“watch [his] back” and that the CW’s family might “get hurt.” Also,

approximately three of four months before the hearing, someone approached the

CW’s father-in-law and other family members at a family reunion in Washington

state and offered money for a picture and/or the location of the CW. Furthermore,

a couple of years before the hearing, in another state, someone hired a hit man to

find and kill the CW. This threat on his life led the DEA to relocate the CW. The

CW also had been relocated one other time since then. On cross-examination, the

CW admitted that his father was in Mexico at the time that the threat was

communicated and that the threat did not stem from the instant case but from a

case out of Washington state. The district court granted the government’s motion,

instructed the parties to refer to the CW as “Jack Menendez,” and forbade any

3 cross-examination into his true identity. Accordingly, the CW testified as “Jack

Menendez.”1

Specifically, the CW testified as follows. Under the supervision of the DEA,

he arranged to meet one of Maso’s codefendants in a Florida store parking lot to

purchase cocaine. After the CW arrived at the parking lot and showed the

codefendant that he had the requisite money, the codefendant called two of his

acquaintances to deliver the cocaine to the store parking lot. Maso was one of

these acquaintances. Maso drove the car in which the acquaintances arrived. Maso

also asked the CW if he had the requisite money and asked the codefendant if

Maso should count the money in his car before handing over the cocaine. The

other acquaintance carried the cocaine on his person. On cross-examination, the

CW admitted that he was paid for his work in the investigation of Maso. The CW

also admitted that he did not become a CW for the DEA until after he was arrested

for possessing half a pound of methamphetamine and that his charge from that

arrest was dismissed in exchange for his cooperation. The CW further admitted

that the portion of the conversation in which Maso asked if he should count the

CW’s money in Maso’s truck was not recorded because of an apparent malfunction

with his equipment.

1 Per Maso’s request, the district court did not inform the jury that the CW was testifying using a pseudonym.

4 I. Right to a Public Trial

A violation of the right to a public trial constitutes structural error, or a

“defect affecting the framework within which the trial proceeds, rather than simply

an error in the trial process itself.” Judd v. Haley, 250 F.3d 1308, 1314-1315 (11th

Cir. 2001). Therefore, such a violation is not subject to a harmless error analysis.

Id. Rather, “once a petitioner demonstrates a violation of his Sixth Amendment

right to a public trial, he need not show that the violation prejudiced him in any

way. The mere demonstration that his right to a public trial was violated entitles a

petitioner to relief.” Id.

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall enjoy the right to a . . . public trial . . . .” U.S. Const. amend. VI.2

The Supreme Court has held, however, that “the right to an open trial may give

way in certain cases to other rights or interests, such as the defendant’s right to a

fair trial or the government’s interest in inhibiting disclosure of sensitive

information.” Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81

L.Ed.2d 31 (1984). The Supreme Court cautioned that “[s]uch circumstances will

2 The government has argued that the right to a public trial does not extend to the in camera hearing in question or the use of a pseudonym. The government argues that the in camera hearing was analogous to a bench conference, to which the right normally does not extend, and merely covered a matter collateral to the ultimate issue of Maso’s guilt. The government argues that the use of a pseudonym did not constitute a closure, as no one was excluded from the courtroom. We do not need to resolve these issues for purposes of the instant appeal.

5 be rare, however, and the balance of interests must be struck with special care.” Id.

Indeed, in Waller, the Supreme Court established the following test to govern

courtroom closures:

The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Waller, 467 U.S. at 48, 104 S.Ct. at 2216.

The district court did not violate Maso’s right to a public trial by conducting

an in camera, rather than open, hearing or allowing the CW to testify using a

pseudonym. See U.S. Const. amend. VI. Regarding the in camera hearing, the

circumstances surrounding the closure satisfied the Waller test. See Waller, 467

U.S. at 48, 104 S.Ct. at 2216. Specifically, the CW advanced an interest that was

more important than Maso’s interest in an open hearing, namely his and his

family’s safety and his role in ongoing DEA investigations. To this end, the CW

testified that, within the year before Maso’s trial, someone had communicated

threats on the CW and his family to the CW’s father and had offered to pay the

CW’s family money in exchange for information on his then-current identity and

whereabouts. Maso also testified that he was involved in ongoing DEA

investigations. The CW’s interest in protecting himself and his family and his role

6 in ongoing DEA investigations would be prejudiced if the evidentiary hearing were

open, in that a public record would be made offering clues as to his real identity.

Also, closing the evidentiary hearing was the least restrictive method to protecting

the CW’s interests. Finally, the arguments and discussions both before and during

the closed hearing provided adequate information for appellate review, as they

provided sufficient information about the CW’s fears for his and his family’s

safety and interest in maintaining secrecy as a CW.

Regarding the use of a pseudonym, the circumstances surrounding the

closure also satisfied the Waller test. See id. Specifically, the CW testified to an

overriding interest in not revealing his true name to the public, as discussed above.

The CW’s interest in protecting himself and his family and his role in ongoing

DEA investigations would be prejudiced if his name, evidence of his continuing

role as a CW for the DEA, and whereabouts were made a public record. Also,

allowing the CW to use a pseudonym was the least restrictive method to protecting

the CW’s interests. Finally, as discussed above, the record provided adequate

findings for appellate review. Accordingly, as both of the closures satisfied the

Waller test for justifying a courtroom closure, the district court did not violate

Maso’s right to a public trial in conducting an in camera hearing and allowing the

CW to testify using a pseudonym. Therefore, we affirm Maso’s conviction as to

7 this issue.

II. Right to Confront Witnesses

We review a district court’s restriction of a defendant’s right to confront

witnesses for abuse of discretion. See Alford v. United States, 282 U.S. 687, 694,

51 S.Ct. 218, 220, 75 L.Ed. 624 (1931). We will not, however, review the

violation for harmless error. See Smith v. State of Illinois, 390 U.S. 129, 131, 88

S.Ct. 748, 750, 19 L.Ed.2d 956 (1968). Rather, “(a) denial of cross-examination

without waiver . . . would be constitutional error of the first magnitude and no

amount of showing of want of prejudice would cure it.” Id.

The Sixth Amendment Confrontation Clause provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. amend. VI. It is axiomatic that the

Confrontation Clause affords a defendant the right to cross examine witnesses. See

Pointer v. Texas, 380 U.S. 400, 400-01, 85 S.Ct. 1065, 1066, 13 L.Ed.2d 923

(1965). Moreover, the Supreme Court has held that the Confrontation Clause

protects a defendant from restrictions on the scope of his cross-examination,

specifically regarding the witness’s identity. Smith, 390 U.S. at 130-33, 88 S.Ct. at

749-51.3

3 In Smith, the principal witness against the defendant testified using a pseudonym. 390 U.S. at 130, 88 S.Ct. at 749. Although defense counsel previously had represented the witness,

8 The issue presented by the instant case, namely whether the Confrontation

Clause was violated when the government revealed the principal witness’s real

name to the defendant in advance of trial but the witness refused to divulge his

identity in open court, is a matter of first impression to this Court. We note,

however, that our predecessor has considered an analogous situation and that

certain of our sister circuits have considered the exact situation.

In United States v. Alston, 460 F.2d 48, 51-52 (5th Cir. 1972), our

predecessor considered a case in which the principal witness against the defendant

refused to divulge his home address, citing concerns for his and his family’s safety.

Our predecessor held that there was no “per se requirement that a witness’ address

be divulged upon demand.” Id. Rather, our predecessor recognized an exception

for “instances in which the physical safety of the witness or his family might be

endangered by disclosure.” Id. Our predecessor concluded that, because the

the Supreme Court noted that the record was devoid of any indication that defense counsel knew the witness’s real name or residence. Id. at 131 n.5, 88 S.Ct. at 749. In holding that this cross- examining scenario deprived the defendant of his confrontation right, the Supreme Court reasoned that

when the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

Id. at 131, 88 S.Ct. at 750 (quotations omitted).

9 witness in question (1) had given enough information to “place [him] in his proper

setting” and to allow effective cross-examination and (2) had a reasonable fear for

his and his family’s safety, the district court did not abuse its discretion in

sustaining the government’s objection to examination of his home address. Id. at

52.

In Siegfriedt v. Fair, 982 F.2d 14, 18-19 (1st Cir. 1992) (persuasive

authority), the First Circuit held that the district court had not violated the

defendant’s right to confrontation by allowing a witness to testify using a

pseudonym at a probable cause hearing because the witness already had been using

the pseudonym as an alias outside of the courtroom and because the defendant

knew the witness’ real name, performed an investigation, and presented

impeachment evidence. In Clark v. Ricketts, 958 F.2d 851, 855 (9th Cir. 1991)

(persuasive authority), the Ninth Circuit held that the district court had not violated

the Confrontation Clause by allowing a witness to testify without revealing his real

name, reasoning that “there is no absolute right of an accused to have a jury hear a

witness’s true name” and that the defendant knew the witness’ real name and

could, therefore, conduct an out-of-court investigation and in-court examination.

The district court did not violate Maso’s right to confront witnesses by

allowing the CW to testify using a pseudonym. See U.S. Const. amend. VI. Our

10 predecessor has approved a restriction on revealing potentially sensitive

information when the witness demonstrated a reasonable fear for his and his

family’s safety. See Alston, 460 F.2d at 51-52.4 Also, we are persuaded by our

sister circuits’ approvals of restrictions on revealing a witness’s real name when

the government previously had informed the defendant of the witness’s real name.

See Siegfriedt, 982 F.2d at 18-19 (persuasive authority); Clark, 958 F.2d at 855

(persuasive authority). Here, the CW demonstrated a reasonable fear for his and

his family’s safety, explaining that someone had communicated a threat on him

and his family to his father in Mexico, someone had approached his family in

Washington state for information on his then-current identity and whereabouts, and

someone had hired a hit man to kill him. See Alston, 460 F.2d at 51-52. Also, the

government revealed the CW’s real name to Maso in advance of his trial, and Maso

effectively explored the CW’s past on cross-examination, asking questions about

his compensation for working as a DEA and his own prior drug activity. See

Siegfriedt, 982 F.2d at 18-19 (persuasive authority); Clark, 958 F.2d at 855

(persuasive authority). Accordingly, as the CW established a reasonable fear for

his and his family’s safety and as the government disclosed the CW’s real name to

4 See Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent in the Eleventh Circuit, all decisions of the former Fifth Circuit announced prior to October 1, 1981).

11 Maso in advance of trial, such that Maso’s ability to prepare his defense was not

hampered, the district court did not violate Maso’s right to confront witnesses by

allowing the CW to testify using a pseudonym. Therefore, we affirm Maso’s

conviction.

AFFIRMED.